Ash v. Aurora Public Schools

Filing 26

ORDER Granting Defendant's 13 Partial Motion to Dismiss Plaintiff's Age Discrimination Claim. Mr. Ash's age discrimination claim is DISMISSED without prejudice. Mr. Ash shall have until 30 days after the stay is lifted to refile his age discrimination claim. Should Mr. Ash fail to amend his claim within 30 days of the stay being lifted, the claim will be dismissed with prejudice. By Judge Christine M. Arguello on 01/10/2019. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello

Civil Action No. 18-cv-01280-CMA-MEH
GEORGE CHRISTOPHER ASH,
Plaintiff,
v.
AURORA PUBLIC SCHOOLS,
Defendant.

ORDER GRANTING DEFENDANT’S PARTIAL MOTION TO DISMISS PLAINTIFF’S
AGE DISCRIMINATION CLAIM
______________________________________________________________________
The matter before the Court is Defendant Aurora Public Schools’ (“APS”) Partial
Motion to Dismiss Plaintiff George Christopher Ash’s claim arising under the Age
Discrimination in Employment Act.1 (Doc. # 13.) For the following reasons, the Court
grants APS’ motion.
I.

BACKGROUND

Mr. Ash filed a lawsuit against APS on May 24, 2018, asserting state and federal
claims of discrimination based on, race, disability, gender, and retaliation under the Age
Discrimination in Employment Act (“ADEA”), Americans with Disabilities Act, Title VII of
the Civil Rights Act, 42 U.S.C. Section 1981, and the Colorado Anti-Discrimination Act.

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The Court notes that this case has been stayed pursuant to the Court’s order on December 10,
2018. (Doc. # 25.) Although the Court stayed the proceedings pending Plaintiff’s receipt of a
right to sue letter from the EEOC, the Partial Motion to Dismiss Plaintiff’s Age Discrimination
Claim is fully briefed and ripe for ruling, thus the Court is issuing this order.

(Doc. # 1.) The following facts are drawn from the Complaint and are taken as true for
the purposes of the instant motion.
Mr. Ash is a 53-year-old African American male who was hired in July 2014 as a
sixth-grade social studies teacher at East Middle School, which is in the Aurora Public
Schools District. (Doc. # 1 at ¶¶ 1, 4, 6.) He alleges that, after a change in
administration at East Middle School, APS began “engaging in a pattern and practice of
discrimination and retaliation against older African American male employees during the
2015-2016 school year [that] worsened thereafter.” (Id. at ¶ 14.) “[S]chool district
employees who were not older African-American male[s] . . . received more favorable
treatment than older male African American employees with respect to assignments,
contracts, promotions, working conditions, and other terms and conditions of
employment.” (Id. at ¶ 15.) In short, Mr. Ash asserts a disparate treatment claim of age
discrimination under the ADEA.
Mr. Ash “was subjected to an atmosphere that condoned and encourages [sic]
discrimination against him on the basis of age,” including being asked to “either resign,
or his employment would be terminated by his not being renewed.” (Id. at ¶¶ 17, 21.) He
was harassed by his supervisor in retaliation for “his engaging in protected activity, and
[he] was discriminated against in the way that he was treated in the workplace, including
the adverse manner in which he was treated leading to his suffering an eye injury on
April 26, 2017 which caused him to go out on workers compensation injury leave, all
relating to his age.” (Id. at ¶ 22.)
Mr. Ash further alleges he was “threatened” by the Assistant Principal in a
classroom setting when he expressed his discomfort with participating in mediation with

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a student who harassed him. (Id. at ¶ 23.) Another administrator told him that “another
older African American male teacher at the same school should have his black card
taken away because he was unable to handle unruly students.” (Id. at ¶ 31.) Mr. Ash
was assigned “more challenging students, some of whom were on probation and some
of whom posed real physical danger to teachers and [APS] would not approve Mr. Ash’s
requests to transfer students out of his class,” while “other [white] members of the sixth
grade Social Studies Team . . . were treated more favorably than Mr. Ash.” (Id. at ¶¶ 24,
31.)
Additionally, after being diagnosed with diabetes, Mr. Ash was reprimanded for
taking excessive leave for medical treatment. (Id. at ¶ 18.) Mr. Ash also alleges he was
refused disability accommodation and was refused reimbursement from APS’s “Health
Leave Bank.” (Id. at ¶ 19.)
In March 2017, school administrators notified Mr. Ash that he would not be
rehired for the 2018-2019 school year due to unsatisfactory work performance. (Id. at
¶ 26.) Mr. Ash then filed a charge of discrimination with the Colorado Civil Rights
Division and the Equal Employment Opportunity Commission on April 18, 2017, and he
received his Right to Sue letter on February 27, 2018. (Id. at ¶ 9.)
On August 6, 2018, APS filed the instant Partial Motion to Dismiss Plaintiff’s Age
Discrimination Claim contending that Mr. Ash has failed to allege any facts that plausibly
state an age discrimination claim. (Doc. # 13.) On August 24, 2018, Mr. Ash filed his
Response (Doc. # 16) and APS filed its Reply on September 7, 2018 (Doc. # 19).
Specifically, APS argues that Mr. Ash’s conclusory statements in his Complaint
fail to either establish that he performed satisfactory work or demonstrate that he

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suffered an adverse employment action in favor of someone younger. (Doc. # 13 at 4–
5.) By contrast, Mr. Ash argues that dismissal of his age claim is unwarranted because
he has pleaded enough facts to establish a prima facia case of age discrimination.
(Doc. # 16 at 4–8.) In the alternative, Mr. Ash requests that this Court allow him a
reasonable period of time to amend his complaint. (Id. at 2.)
II.

LAW GOVERNING A MOTION TO DISMISS

The purpose of a motion to dismiss under Rule 12(b)(6) is to test “the sufficiency
of the allegations within the four corners of the complaint.” Mobley v. McCormick, 40
F.3d 337, 340 (10th Cir. 1994). A complaint will survive such a motion only if it contains
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “The question is whether, if the allegations are
true, it is plausible and not merely possible that the plaintiff is entitled to relief under the
relevant law.” Christy Sports, LLC v. Deer Valley Resort Co., Ltd., 555 F.3d 1188, 1192
(10th Cir. 2009).
When deciding a Rule 12(b)(6) motion, a court must accept all the well-pleaded
allegations of the complaint as true and must construe them in the light most favorable
to the plaintiff. Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991). Nevertheless, a
complaint does not “suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 557). “The court’s function on a Rule 12(b)(6) motion is not to weigh potential
evidence that the parties might present at trial, but to assess whether the plaintiff’s
complaint alone is legally sufficient to state a claim for which relief may be granted.”
Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).

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III.

DISCUSSION

It is unlawful for any employer to refuse to hire, fire, or otherwise discriminate
against an individual with respect to the compensation, terms, conditions, or privileges
of his employment because of that individual’s age. 29 U.S.C. § 623(a)(1). “To establish
a disparate-treatment claim under the plain language of the ADEA, . . . a plaintiff must
prove that age was the ‘but-for’ cause of the employer's adverse decision.” Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009) (citing Bridge v. Phoenix Bond & Indem.
Co., 553 U.S. 639, 653 (2008)) (further citation omitted). Although Plaintiff need not
allege that his age was the sole motivating factor for his termination, he must allege that
“age was the factor that made a difference” in causing the adverse action. Jones v.
Oklahoma Cty. Pub. Schs., 617 F.3d 1273, 1277-78 (10th Cir. 2010) (“an employer may
be held liable under the ADEA if other factors contributed to its taking an adverse
action, as long as age was the factor that made a difference”).
In cases relying on circumstantial evidence, “plaintiffs may use the McDonnell
Douglas . . . analysis to prove age discrimination under the ADEA.” Jones, 617 F.3d at
1278; see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that
analysis, a plaintiff bears the initial burden of setting forth a prima facie case that: “1)
[he] is a member of the class protected by the [ADEA]; 2) [he] suffered an adverse
employment action; 3) [he] was qualified for the position at issue; and 4) [h]e was
treated less favorably than others not in the protected class.” Sanchez v. Denver Pub.
Schs., 164 F.3d 527, 531 (10th Cir. 1998). Throughout the analysis, “[t]he plaintiff . . .
carries the full burden of persuasion to show that the defendant discriminated on [an]

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illegal basis.” Id. (quoting Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1125 (10th Cir.
2005)).
The parties do not dispute that Mr. Ash demonstrated he was a member of the
class protected by the ADEA. Instead, APS argues that Mr. Ash did not sufficiently
plead enough facts to indicate he performed satisfactory work or that he suffered an
adverse employment action in favor of a younger person. (Doc. # 13 at 5–8.) The Court
agrees.
Mr. Ash has failed to allege enough facts to support a claim that his age was the
“but-for” cause of his termination. Additionally, Mr. Ash has failed to allege facts
showing that he performed satisfactory work, and he has failed to articulate how he was
treated less favorably than his younger colleagues. The only allegations Mr. Ash asserts
regarding disparate treatment on account of age are as follows: APS knowingly and
intentionally engaged in a pattern and practice of discrimination against Mr. Ash
because of his age (Doc. # 1 at ¶¶ 14, 31); employees who were not older African
American males were treated more favorably with respect to assignments, contracts,
promotions, working conditions, and other terms and conditions of employment (id. at
¶ 15–16); an administrator named Yvette Roaf-Bess told Mr. Ash that another older
African American male should have his black card taken away for failing to control
students (id. at ¶ 31); and Mr. Ash suffered other discriminatory and unlawful treatment
(id.).
Mr. Ash does not identify how APS employed a pattern of discrimination on the
basis of his age, nor does he identify how younger employees were treated more
favorably. He also fails to mention how the unspecified contracts, assignments, and

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working conditions are more favorable for younger employees. Further, Mr. Ash does
not indicate that he was asked to resign because of his age or allege that his age was a
motivating factor behind his termination.
Mr. Ash also states that he has satisfactorily performed his job, (id. at ¶ 13) but
he does not provide any more facts to support this conclusory statement. Courts
disregard conclusory statements and look only at factual allegations that provide a
plausible basis for liability when examining a complaint under Rule 12(b)(6). Khalik v.
United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012). Further, although Mr. Ash
identifies a single administrator who made one derogatory comment, he fails to
articulate whether that individual had any role in management or the determination of
whether he was retained as an employee. “Stray remarks,” otherwise known as isolated
or ambiguous age-related comments, are not material in showing whether employer’s
actions were based on age discrimination. Cone v. Longmont United Hosp. Ass’n, 14
F.3d 526, 531 (10th Cir. 1994) (finding isolated age-related comments made by
personnel who were and were not involved in an employee’s termination were
insufficient to show age discrimination because the plaintiff failed to allege a nexus
between the comments and her termination); see also Stone v. Autoliv ASP, Inc., 210
F.3d 1132, 1140 (10th Cir.2000) (holding supervisor's comments that “at [employee's]
age, it would be difficult to train for another position” or “difficult to find a new job” were
too abstract to support an inference of age discrimination).
Moreover, Mr. Ash fails to allege a nexus between the allegedly derogatory
comment—or any other allegedly discriminatory treatment—and his ultimate
termination; the Court is simply left to assume that one exists. Id. at 1194 (affirming

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order granting employer’s motion to dismiss and stating “there is nothing other than
sheer speculation to link . . . the termination to a discriminatory or retaliatory motive”).
For Mr. Ash’s age discrimination claim to be plausible, he would need to allege
additional facts establishing that his age and his treatment relative to younger
employees (rather than his disabilities, medical leave, or conflicts with administrators
and students) were factors that led to his termination.
Instead, Mr. Ash asserts that this is a mixed motive case where he has alleged
that the determining factors of his age, race, gender, and disabilities were collectively
co-motivating factors which resulted in the discrimination and harassment perpetrated
against him. (Doc. # 1 at ¶ 32.) However, while his allegations may be adequate to
support his other claims of discrimination and retaliation, they are insufficient to
demonstrate age discrimination.
IV.

CONCLUSION

Based on the foregoing, the Court GRANTS APS’ Partial Motion to Dismiss
Mr. Ash’s Age Discrimination Claim. (Doc. # 13.) Mr. Ash’s age discrimination claim is
DISMISSED without prejudice. Mr. Ash shall have until 30 days after the stay is lifted to
refile his age discrimination claim. Should Mr. Ash fail to amend his claim within 30 days
of the stay being lifted, the claim will be dismissed with prejudice.
DATED: January 10, 2019
BY THE COURT:

_____________________________
CHRISTINE M. ARGUELLO
United States District Judge
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